Dodging arbitration in TCPA lawsuits
- Peter Schneider
- 3 days ago
- 6 min read
Updated: 2 days ago
Telemarketers have a list of judicial priorities:
Filing a TCPA lawsuit is itself evidence of fraud
The TCPA plaintiff has to prove he/she didn't ask for the calls
The recipients of unwanted calls have the obligation to make them stop
Telemarketers can use leads with impunity so long as they don't have actual knowledge the lead is fraudulent.
Get rid of express written consent.
And not the least among them is just visiting a webpage is consenting to their terms of service. Even if you have to visit the page just to see them. Judges generally have not been willing to go that far, but some patron saints of telemarketers have done quite a bit of work for the industry by saying things like if a call to action button is in the middle of a long webpage, consumers should be expected to scroll to the bottom just in case there are hidden terms.
So I was a little surprised to see consumers won (in a 2-1 decision) the appeal to the 11th circuit's Tejon v. Networks, No. 24-11114, 2026 LX 248759 (11th Cir. May 1, 2026).
The gist of the appeal was simple, did clicking on one of the red buttons bind the clicker to the arbitration clause in the terms of service?
Zeus Networks, LLC, wants to bind Roger Tejon to an arbitration agreement found on its internet-based platform. But Zeus chose to bury the page containing that agreement behind a hyperlink that itself was written in small, gray text that Tejon did not have to click. This text was located beneath large, red action buttons that Tejon did have to click. Was the hyperlink text enough to put Tejon on notice that clicking on the large, red buttons would subject him to binding arbitration? We find that it was not.
Browsewrap vs Clickwrap
Zeus's style of button consent is called browse wrap because the user is not required to click a button manifesting consent to terms to continue through the website.
A clickwrap agreement requires a user to check a box or click a button to acknowledge acceptance of the agreement's terms and conditions. Id. By contrast, a browsewrap agreement contains hyperlinked terms, and the user's consent is implied by continued use of the website.
Courts require websites employing browsewrap agreements to either demonstrate that the user had actual knowledge of the terms and conditions, or to place the terms and conditions conspicuously enough to put a reasonably prudent person on notice that they existed. The parties in this case focus on whether Tejon had inquiry notice of the arbitration clause.
Anyone who seeks to enforce an arbitration clause through a browsewrap agreement must prominently display the hyperlink that leads to the clause. "Consumers cannot be required to hover their mouse over otherwise plain-looking text or aimlessly click on words on a page in an effort to ferret out hyperlinks." Mia. Dolphins, 410 So. 3d at 689 (citation modified). In other words, the "inquiry notice standard demands conspicuousness tailored to the reasonably prudent Internet user, not to the expert user, [so] the design of the hyperlinks must put such a user on notice of their existence."
The more terms and conditions links are bolded, use distinguishing colors, and a prominently displayed without being hidden in a sea of distraction the more courts are likely to hold the terms and conditions were conspicuous.
Relevant design elements include the location of the hyperlink on the page, its proximity to buttons the user must click, and its font size, format, and color. See Mia. Dolphins, 410 So. 3d at 689-90. Also relevant is whether the page provided an explicit textual notice that taking a certain action would constitute acceptance of the website's terms. See Berman, 30 F.4th at 858 (finding the notice "I understand and agree to the Terms & Conditions" failed to explicitly notify users of the action they must take to consent to those terms and conditions because it lacked language such as, "By clicking the Continue >> button, you agree to the Terms & Conditions")
The Zeus court found that the terms and conditions in the image above failed to be conspicuous:
Zeus's hyperlink was not conspicuous. First, Zeus placed it beneath two large, red action buttons that were prominently featured at the center of the page. When important terms are placed below a highly conspicuous action button, it is not reasonable to assume that users will continue scrolling past the action button. See Vitacost.com, 210 So. 3d at 765 ("Uniformly, courts have declined to enforce browsewrap agreements when the hyperlink to the terms and conditions is buried at the bottom of the page . . . .") We next examine the font size of the notice. The critical text "must be displayed in a font size and format such that the court can fairly assume that a reasonably prudent Internet user would have seen it." Berman, 30 F.4th at 856; see, e.g., Mia. Dolphins, 410 So. 3d at 689-90. Zeus's terms of service hyperlink is printed in a small font on the bottom half of the page. It is easy to overlook given the larger font sizes and bolder colors of other elements on the page. Berman, 30 F.4th at 857 ("The comparatively larger font used in all of the surrounding text naturally directs the user's attention everywhere else."). Although "Terms of Service" is underlined, indicating the presence of a hyperlink, it is otherwise indistinguishable from the informational text of the same size and color surrounding it. As to color, all the text below the red action buttons, including the hyperlinked terms, appears in a dim, gray color. In Berman, the Ninth Circuit also considered whether a hyperlink appearing "in a tiny gray font," without more, sufficiently drew a user's attention. Berman, 30 F.4th at 854. The court found that it did not. The Ninth Circuit opined, "[W]hile it is permissible to disclose terms and conditions through a hyperlink, the fact that a hyperlink is present must be readily apparent." "Simply underscoring words or phrases . . . will often be insufficient to alert a reasonably prudent user that a clickable link exists." The court noted that customary design elements that signal the existence of a hyperlink, such as "the use of a contrasting font color (typically blue) and the use of all capital letters," could indicate to users that the text is not ordinary but instead provides a clickable pathway to another page; see, e.g., Mia. Dolphins, 410 So. 3d at 689-90. As in Berman, Zeus's hyperlink is not highlighted in a different color and is not in all capital letters. The surrounding clutter regarding payment details and age requirements competes for the user's attention and further obscures the terms. Cf. Meyer v. Uber Techs., Inc., 868 F.3d 66, 78 (2d Cir. 2017) (finding a browsewrap agreement that was hyperlinked in a blue color and underlined provided reasonably conspicuous notice where the payment screen was "uncluttered, with only fields for the user to enter his or her credit card details, buttons to register for a user account . . . , and the warning that 'By creating an . . . account, you agree to the TERMS OF SERVICE & PRIVACY POLICY'"). Finally, and notably, Zeus's terms of service notice simply does not say anything about arbitration. It would have been simple enough for Zeus to state plainly that clicking on one of the red buttons would subject any dispute between the user and Zeus to binding arbitration. Zeus's hyperlink text also could have said "ARBITRATION AGREEMENT." Zeus chose instead to place the provision on a separate terms of service page. Having made that choice, it was required to design its website to ensure that a reasonable user would know to click to view the terms of service page, and it failed to do so. None of the things that we have discussed—location on the page, font size, contrasting color, capital letters, underlining, informational content, and so forth—is individually required to pass a conspicuousness assessment. The point of these design elements is to place a reasonably prudent internet user on notice of the agreement at issue. The internet site owner may utilize some combination of these elements, or perhaps something else entirely, to bring attention to the agreement. Even better, the owner could use a clickwrap agreement. But Zeus chose to do none of this. We find that Tejon was not on inquiry notice of the terms of service or the arbitration agreement.
In my opinion Mr. Tejon was very fortunate here, this case could easily have gone against him and given the telemarketing industry another win. That said, he did win, and helped move the the law forward on forcing websites to stop playing hide the ball with terms and conditions.
Read More:
You can read the full 11th circuit opinion here
And the district court opinion here
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Note: The opinions in this blog are mine (Peter Schneider) and do not constitute legal advice. If you're considering suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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